6 Wash. 315 | Wash. | 1893
Lead Opinion
The opinion of the court was delivered by
After the decision of this court in Wilson v. Seattle, 2 Wash. 543 (27 Pac. Rep. 474), respondent, as assignee of the contractor for the work on South Twelfth street, brought a suit against the city, setting out the facts showing the issuance to his assignor of a large number of city warrants as partial payment of his claim for the work done in grading, sidewalking and guttering the street, their
The city appealing makes numerous objections, the most important of which are summed up in the proposition that it could in no such event as has here transpired, under the law, be held liable for the cost of work done in grading South Twelfth street. It is maintained that § 7 of the charter of 1886 referred only to repairs of streets, while § 8 provided for new grading; that § 8 expressed the only power the city had to grade, and, as the means therein mentioned for paying the cost were local assessments, there was no other source to which a contractor could look; that the city was the mere agent of the property holders, and that only to the extent of furnishing officers to levy and collect assessments; and that no liability could in any event attach to the city at large, or, at least, not until there was a positive refusal to make an assessment, or such delay or other circumstance as would lose to the contractor his compensation for his work and materials.
There are cases which go to the extent of holding that, where there was either lack of statutory power, or a failure to acquire jurisdiction of the subject matter, a municipal corporation must be entirely absolved from paying such claims. Hunt v. City of Utica, 18 N. Y. 442; Swift v. City of Williamsburgh, 24 Barb. 427; City of Leavenworth v. Rankin, 2 Kan. 357; Goodrich v. City of Detroit, 12 Mich. 279; Johnson v. Indianapolis, 16 Ind. 227; Bond v. Mayor, etc., of Newark, 19 N. J. Eq. 376.
But it is beyond all question, it seems to us, that the city in this instance was not limited to special assessments as a
‘ ‘ General power and authority over the subject is by law given the city, and the power also vested in the city to require that the cost may be assessed upon the adjoining owner, does not impair the power of the city itself to do the work. . . . The city may require the owner to pay, but it is not compelled to do so.' ’ City of Memphis v. Brown, 20 Wall. 289-310.
To the same effect is Hitchcock v. Galveston, 96 U. S. 341. In Portland, etc., Mfg. Co. v. East Portland, 18 Or. 21 (22 Pac. Rep. 536), the statute construed would seem to read almost in the form in which appellant contends that this one should be construed; but the agreed price for the material used in the improvement of the street was held to be recoverable, where warrants had been issued payable out of a fund to be collected from assessments, but the fund had not been provided. The. concurring opinion of Lord, J., is devoted to a clear showing of the distinction between the general power to improve streets and the special power to do so by local assessments. The able dissenting opinion of Thayer, J., is based entirely upon the fact that in his view the only power expressed was to improve by local assessments.
But -it would not be profitable to pursue this matter further, since in the case before us there are other elements in it which are decisive.
Section 8 of the charter contained little in addition to
“Whenever the common council of the city of Seattle shall cause any part of any street, highway or alley therein to be curbed, paved, graded, macadamized or guttered, or any sidewalk to be constructed in any such street, highway or alley, the whole cost of such improvement shall be levied and become a lien upon the taxable real estate fronting on the part of such street, highway or alley so improved and within the assessment district to be established as hereinafter provided. ’ ’
The eighth section provided that when an assessment had been ordered paid to a contractor, a duplicate of the roll should be delivered to him, so that he might collect or foreclose in accordance with the statute. This ordinance became a general law of the city, and was fair notice to all persons dealing with it in such matters, that contracts for street grading and sidewalks would be paid out of special assessments, and not from the street fund or general fund.
Again, at the time this improvement was ordered and the contract made, the constitutional restrictions upon municipal indebtedness were in force, and it appears in the case that although the city of Seattle was limited to one and one-half per cent, on about sixteen millions, she already had out her obligations for upwards of four hundred thousand dollars, an amount far beyond her lawful indebtedness. This condition of things any one contracting with her was bound to know; so, if ordinance 737 was not fully
But the respondent endeavors to avoid this turn of affairs by two arguments: (1) That he has a right to recover damages for the failure to levy the assessment and procure the fund. (2) That he had no remedy whatever when he brought his suit.
On the first point we are not with him. This is not an action against officers for the neglect of a duty whereby irreparable loss has occurred. If he could recover at all, it must be upon the contract of his assignor, or upon his warrants. The contract called for payment “out of a special fund created for that purpose;” and the warrants directed the treasurer to pay them ‘ ‘ out of South Twelfth street improvement funds, under ordinance No. 1413, not otherwise appropriated. ’ ’ No other considerations intervening, if the fund failed, the implied agreement would be to pay absolutely. It is time that the debt limits imposed upon municipal corporations are held not to apply where one suffers a wrong at their hands which is ex delictu; but, whatever might be held to be the character of this action, it is not based upon a tort, but upon a voluntary delinquency. Plainly, if such cases as this were to be allowed to fall within the principles governing accidents due to the bad condition of streets, there might as well be an end to all restrictive legislation upon the power of cities to incur debt. Constitutions and acts of the legislature would be of as little preventive force as cobwebs in a cyclone.
The record shows that after the case of Wilson v. Seattle was decided, no steps were taken looking toward a new assessment; but an amendment to the charter, providing for new assessments in such cases, was made March 8, 1892, after the commencement of this action. An act of the legislature approved March 9, 1893, confirmed this amendment and provided a concurrent remedy in such cases; this act went into effect immediately.
The delay in making a new assessment for this improvement is shown to have been due to the doubt which the officials of the city of Seattle had as to the legality of such
We agree with the last named case in holding that it was the right of the contractor to have a valid assessment laid upon the property benefited, and this was a right which could not be taken away by a change in the law amounting to a deprivation of the right to be paid, or by any neglect or failure of the officers of the city. It seems, however, that the course of the city in this case has not been one of neglect, except in the matter of the notice in the first instance. After the decision in the Wilson case the delay arose entirely from honest doubt as to the law of the case, in which the respondent seems to have shared, inasmuch as he never
Whether the action of the mayor, clerk and comptroller in issuing warrants to Smart, the contractor, in advance of the collection of the assessment was regular or not, we are unable to say, as the ordinances of the city on this subject are not in the record. But, however that may be, they are not entitled to even that amount of consideration which attaches to the general warrant of such a corporation upon its treasury. The contract in this case, as has been said, called for payment out of a special fund to be created, but no time was stated; and a subsequent clause provided that ‘ ‘ warrants ’ ’ should be issued to Smart, at the first regular meeting of the common council in each month from July to December, inclusive, for seventy-five per cent, of the contract price of work completed during the preceding month, and for the balance at the first meeting of the council after the completion of the work and its approval by the city surveyor. The warrants before us were issued in the last four months, and respondent claimed and was allowed interest at ten per cent, upon each of them from the date of its presentation to the treasurer within a few days of its issue. Obviously this was an error, even though the city
Equity would, say, we think, that interest should be paid upon these warrants from the date when the city would itself have been entitled to collect interest, that is, after delinquency upon the assessment March 8, 1891, but not earlier. Certainly no obligation could be laid upon the city to pay interest before that time, for until then it was in no wise in default, in any view which could be taken of the case.
Judgment reversed, and remanded for dismissal of the cause.
Scott and Andjgrs, JJ., concur.
Concurrence Opinion
I concur in the result, but not in what is said as to the right of the city to elect whether it will improve
Rehearing
ON PETITION EOR RE-HEARING.
Counsel for respondent in this ease urges, upon a petition for re-hearing, that this court erred in assuming as a fact in its opinion heretofore filed, that at the time of making the contract for the grading of South Twelfth street the city of Seattle had reached its constitutional limit of indebtedness. The facts are these: The answer of the city set up the fact that the constitutional limit had been reached as one of its defenses, and to this defense the plaintiff interposed a demui-rer, which was sustained by the court; but upon the trial, notwithstanding this defense had been shut out, counsel for the city offered to prove the fact. Errors were assigned upon the action of the court in sustaining the demurrer, and in shutting out the proof.
In disposing of the case on appeal, this court found the action of the court below to be error, and had that fact been the only point in the case it would have gone back for re-trial. ■ But the main point upon which the case was decided was that the respondent had mistaken his remedy, by reason of the fact that his contract with the city was of such a character that it would not justify the charge of negligence against the city until it had been fully moved to levy and collect a local assessment to pay for the work. This ground alone, in our judgment, authorized the dismissal of the case. The other matters discussed were in the case, but were not absolutely necessary to its decision upon the merits. It cannot be questioned that, in ai'gument, we were justified in assuming the fact of the city’s
The petition for re-hearing is denied.
Hoyt, Scott and Anders, JJ., concur.
Dissenting Opinion
(dissenting). — I dissent. The judgment, in my opinion, on every principle of fair dealing, is right, and should be affirmed.